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Bryan Smith e-mailed me with an explanation of why his story didn't get into the e-mails. "I thoroughly reviewed that filing, including reading carefully through the e-mails included in it," he told me. "And though I didn't quote the emails verbatim, the story does make clear, more than once, their importance to the university's case against Protess. More to the point, what those emails revealed is that Protess shared the evidence his students uncovered with McKinney's lawyers—a fact he himself acknowledged on the Innocence Project's website six months before the subpoena was even issued. The issue was not whether Protess collaborated with the center. The issue was whether Protess had turned over everything to McKinney's lawyers. Those emails could have misled readers into believing he had, when a later court filing by the Center's attorney—referenced in my story—made clear that he had not."
This is a reasonable point, and Smith does describe John Lavine leading "stunned professors through a detailed PowerPoint presentation" of Protess e-mails. But it would have been helpful to examine what stunned them. At the core of this saga—as I perceive it and would have written it—is the question of whether Protess and his students acted as journalists and could be defended from Alvarez's meddling or acted as partisan investigators and could not. The lawyers defending Protess against Alvarez's subpoena believed one thing until they concluded they had no choice but to believe another.
Normally, journalists and prosecutors aren't on opposite sides in a courtroom. Normally, investigative reporters try to build a case of criminal conduct and hope a prosecuting attorney will act on it. Protess earned his bones with the Better Government Association, where he was research director from 1976 to 1981. In that era, BGA investigators teamed up with journalists but didn't think of themselves as journalists exactly, though some later became reporters. For example, Bill Recktenwald now teaches journalism at Southern Illinois University in Carbondale. "If we knew about something, like a shakedown or something," Recktenwald remembers, "we'd contact prosecutors and say we know about this shakedown. On a couple of occasions I wore a court-authorized wire and was involved before the individual was arrested." One of his first big assignments, he remembers, was a probe of west-side vote fraud for the Chicago Daily News. His job was to register in flop houses under phony names and later look for those names in the rolls of registered voters.
Recktenwald's boss is Bill Freivogel, a former St. Louis Post-Dispatch reporter who admits that at various times in his career he's "traded information on a confidential basis with policemen or prosecutors in hopes of teasing out information I didn't have." A lawyer, he's followed the Protess affair closely enough to write about it, yet he had to think hard to recognize that Protess had compromised his reporter's privilege. "If you gave a test to 1,000 reporters," Freivogal says, "I don't think too many of them would realize off the top of their heads they were potentially waiving any right to claim confidentiality if they used the information they had to trade up to a prosecutor to get additional information."
I also had a conversation with Ed Pound, who was the top investigative reporter at the Sun-Times back in the 70s, when I worked there. He and his colleague Tom Moore were the reporters who brought down Tom Keane, the powerful floor leader of the City Council. Their articles laid out a complicated real estate scheme Keane had masterminded, and the U.S. Attorney's Office later convicted him of fraud and conspiracy. Pound wouldn't talk then about how he got that story, and he won't talk now. But, he said, emphasizing that he was only sharing general principles, "There is nothing unusual about working with prosecutors or defense attorneys. For most investigative reporters, those are essential relationships for getting the job done. It's part of the game—you have to do it."
He continued, "What you don't do is give people your internal work product—I took documents, I didn't give them up. It's pretty hard to take a position you've got [First Amendment] protection if you're turning over internal work product. But let's say somebody asked you about a particular individual and wanted your paper's clips on him. I'd give them the clips. It's a road you have to travel very carefully."
And once a reporter wrapped up his investigation, I asked Pound, would he ever discuss what he had with the prosecutors before publishing it?
Yes, he said.
Protess traveled the road, but not carefully—and not, Anita Alvarez might say, in the right company. Alvarez spotted her opportunity and she took it. But it's not a clear line or a straight line that Protess crossed, or a line that runs a country mile this side of the place those e-mails put Protess in. Alec Klein, the former Washington Post investigative reporter who now runs the Medill Innocence Project, says he'll make it clear his students are reporters by simply publishing their findings on the project's website. That's a proper, necessary, second-generation reform. The first generation has left the building.